The effect of not retaining this clause
would be to deny the State's one possi-
bility of ever revoking an irrevocable
tax exemption granted prior to the
Constitution of 1851, i.e., the possibility
that a corporation with such an exemp-
tion would avail itself of rights under
the general law and thereby be presumed
to have surrendered its exemption. The
only such exemption which still exists
and about which concern has been ex-
pressed is that of the Baltimore and
Ohio Railroad (B. & O. R.R.). This
concern may be questionable today, but
if the profits of the railroad increase, it
may become a fertile source of revenue
for the State; but if Section 48 is de-
leted, there would not be even a possi-
bility that the State could avail itself of
the revenue. In State v. B. & O. R.R.
Co.,6 the Court of Appeals said that the
railroad's "immunity from taxation arose
from the Act of 1826 (their charter)
which was beyond the power of the leg-
islature to alter, amend or repeal, except
by the assent of the B. & O. R.R. Co.,"
which could be presumed by their accept-
7 national municipal league, model
state constitution (6th ed., 1963).
8 State v. B. & O. R.R. 127 Md. 434
(1916).
128
|
ance of rights under the general laws,
according to the Constitution of 1851.
CONCLUSION
For the reasons stated above, it ap-
pears that the first two parts of Section
48 could be deleted without causing any
problem. However, as for the "Grand-
father Clause," a decision must be made
as to which is more desirable :
A. Deletion and a "clean" constitu-
tion thus perpetuating the tax-
exempt status; or
B. Retention and the possibility of
revoking the tax exemption if the
railroad accepts rights under the
general law.
If it is decided to delete Section 48,
it may be desirable to have a provision
declaring that corporations not affected
expressly by the new constitution shall
remain as if the constitution had not
been altered.9 However, this also would
probably be an unnecessary provision
since Article 23, Section Ic, of the Code
provides that the provisions of a special
act of the legislature shall prevail over
inconsistent provisions of Article 23.
9 This was done in N. Y. const, art. 1, §
15; del const, art. IX, § 4; Miss. const.
Sched, 279.
|
